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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
MADHUMATI MITRA, J.
Krishnendu Das Thakur – Appellant
Versus
The State of West of Bengal & Another – Respondents
C.R.R. No. 3566 of 2018 With CRAN. No. 1348 of 2019
Decided on : 28-06-2019
Protection of Women from Domestic Violence Act - Maintenance - Section 25, Section 2(a), Section 2(q), Section 23, Section 125 of the Code of Criminal Procedure - The court discussed the relevant sections and provisions of the Protection of Women from Domestic Violence Act, 2005, including Section 25, Section 2(a), Section 2(q), Section 23, and compared them with Section 125 of the Code of Criminal Procedure. The court highlighted the definitions of 'aggrieved person' and 'respondent', the scope of alteration, modification, or revocation of orders, and the impact of divorce on the domestic relationship and entitlement to maintenance.
Fact of the Case:
The petitioner sought to revoke an order for maintenance and rent for alternative accommodation under the Protection of Women from Domestic Violence Act, 2005, after obtaining a divorce decree. The court analyzed the impact of divorce on the domestic relationship and the entitlement to maintenance, considering relevant legal provisions and case law.
Finding of the Court:
The court found that the divorced wife remained entitled to maintenance and relief under the Act, despite the decree of divorce, as the domestic relationship existed at the time of the complaint of domestic violence and the order for maintenance. The court emphasized the necessity of the domestic relationship to bring an action and obtain relief under the Act.
Issues: The issues involved the impact of divorce on the entitlement to maintenance and the execution of orders granted under the Act, considering the definitions of 'aggrieved person' and 'domestic relationship', and the scope of alteration, modification, or revocation of orders under Section 25.
Ratio Decidendi: The court held that the existence of a domestic relationship at the time of the complaint of domestic violence and the order for maintenance was essential to claim relief under the Act, and the divorced wife remained entitled to maintenance and relief despite the decree of divorce.
Final Decision: The court dismissed the petitioner's application, affirming the entitlement of the divorced wife to maintenance and relief under the Act, and emphasizing the necessity of the domestic relationship to obtain relief.
JUDGMENT :
1. The petitioner has filed the present application under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, praying for quashing/setting aside the impugned order dated 10th October, 2018 passed by the Learned Additional Session Judge, Howrah in Criminal Appeal no.82 of 2017 and the order of rejection of the prayer for stay of the Mis.Execution Case no.298 of 2016 pending before the Learned Judicial Magistrate, Howrah Municipal Court, Howrah arising out of Miscellaneous Case no.27836/2014 under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
2. In Miscellaneous Case no.27836/2014 under Section 12 of the Protection of Women from Domestic Violence Act, the petitioner was directed by the Learned Magistrate to pay Rs. 3,000/- per month for maintenance and Rs.800/- per month for rent of alternative accommodation on and from 5th October, 2015 to the opposite party. Thereafter the petitioner initiated a matrimonial suit praying for dissolution of his marriage with his wife and obtained ex parte decree of divorce on 23rd February, 2016. After the decree of divorce the petitioner filed an application under Section 25 of the Protection of Women from Domestic Violence Act, 2005 praying for alteration/modification or revocation of the order dated 5th October, 2015, passed by the Learned Magistrate granting maintenance and rent for alternative accommodation in connection with Miscellaneous Case no.27836/2014 on the ground that his marriage with the opposite party was dissolved by a decree of divorce on 23rd February, 2016 and he is not liable to pay any amount to opposite party in terms of the order dated 5th October 2015. It is the specific contention of the petitioner that after the decree of divorce he is no longer in ‘domestic relation’ with the opposite party no.2.
3. All the Learned Counsel appearing for the parties advanced their arguments with the help of a series of decisions. Before delving deep into the matter, it would be better to deal with the relevant Sections and Provisions of the Protection of Women from Domestic Violence Act, 2005.
4. Section 25 of the said Act reads as under:
“Duration and alteration of orders- (1) A protection order made under Section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.”
5. Section 25 consists of two parts. Sub-Section 1 of Section 25 of the Act 2005 deals with the protection order made under Section 18 of the Act. The second part, that is Sub-Section 2 of Section 25 speaks about alteration, modification or revocation of any order made under this Act. So far as Sub- Section 1 of Section 25 is concerned, only the aggrieved person may apply for discharge of protection order passed under Section 18 of the Act.
6. On the other hand Sub-Section 2 of Section 25 provides that the aggrieved person or the respondent may approach before the Magistrate by filing an application for alteration, modification or revocation of any order made under this Act. If any such application is filed before the Magistrate praying for alteration, modification or revocation of any order made under this Act either by the aggrieved person or by the respondent then the Magistrate may for reasons to be recorded in writing pass order, as he may deem appropriate. Sub-Section 2 of Section 25 has conferred right both on the aggrieved person and the respondent to approach before the Magistrate for alteration, modification or revocation of any order made under this Act. Sub-Section 1 of Section 25 is restricted only to the protection orders under Section 18 of the Act. The recourse under Sub-Section 1 of Section 2
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